Sixth Circuit Refines Harmless-Error Doctrine after Erlinger: A Two-Tier Approach to “Different Occasions” under the ACCA

Introduction

In United States v. Phillip Barnes (consolidated with United States v. Nathaniel Durham), the U.S. Court of Appeals for the Sixth Circuit confronted a recurring post-Erlinger problem: when, if ever, can an appellate court affirm an Armed Career Criminal Act (ACCA) sentence that was imposed by a judge—rather than a jury—on the ground that the error was harmless?

The consolidated appeal offered contrasting fact patterns: Nathaniel Durham’s ten residential burglaries spanned months and cities; Phillip Barnes’s four gun-point robberies clustered around Louisville Family Dollar stores over three summer weeks. Both men were tagged as Armed Career Criminals, but the district court—not a jury—found that their prior crimes were committed on “occasions different from one another,” thereby triggering ACCA’s 15-year mandatory minimum. After the Supreme Court’s watershed decision in Erlinger v. United States, 602 U.S. 821 (2024), the defendants argued that only a jury could make that factual determination.

Applying and elaborating on its own precedent in United States v. Campbell, 122 F.4th 624 (6th Cir. 2024), the Sixth Circuit drew a new doctrinal line. It affirmed Durham’s ACCA sentence (finding the error harmless) but vacated Barnes’s sentence (finding the error harmful), thus creating a practical “two-tier” test for harmless error in this context.

Summary of the Judgment

The court agreed that the district judge had erred by deciding the “different occasions” question without a jury, contravening Erlinger.
Under Campbell, such an error can be reviewed for harmlessness: the government must prove beyond a reasonable doubt that any reasonable jury would have found the offenses occurred on separate occasions.
Applying the Supreme Court’s multi-factor framework from Wooden v. United States, 595 U.S. 360 (2022) (time, place, character/relationship), the panel split:

Durham: Offenses occurred months apart, at least 15 miles apart, different victims—error harmless; sentence affirmed.
Barnes: Three of four robberies occurred within 25 days, same store chain, similar modus operandi, no intervening arrests—error not harmless; sentence vacated and remanded.

Judge Bush concurred, lamenting prior decisions (Cogdill, Kimbrough) but deeming them not irreconcilable.
Judge Moore concurred in part/dissented in part, arguing both sentences should be vacated and faulting the majority for undervaluing the “character and relationship” factor.

Analysis

1. Precedents Cited and Their Influence

Erlinger v. United States (2024): Held the jury must find, beyond a reasonable doubt, that prior crimes occurred on different occasions for ACCA purposes.
Wooden v. United States (2022): Introduced a holistic, four-factor approach (time, place, character, relationship) to determine whether offenses are part of a single “occasion.”
United States v. Campbell (6th Cir. 2024): Announced that a pre-Erlinger judicial fact-finding error is reviewable for harmless error on direct appeal.
United States v. Cogdill (6th Cir. 2025) & United States v. Kimbrough (6th Cir. 2025): Harmless error not found where record gaps or close factual nexus left room for reasonable doubt.
Early ACCA “timing” cases such as United States v. Brady, 988 F.2d 664 (6th Cir. 1993) and United States v. Graves, 60 F.3d 1183 (6th Cir. 1995), illustrated the earlier, judge-made episode test, later supplanted by Wooden.

By synthesizing these cases, the court effectively created a sliding-scale harmless-error inquiry: significant temporal and geographic separation plus distinct victims/acts → error harmless; clustered crimes with shared attributes → error harmful.

2. The Court’s Legal Reasoning

The panel proceeded in three steps:

Identify the error: Under Erlinger, the district judge’s unilateral “different occasions” finding violated the Fifth and Sixth Amendments.
Select the review standard: Following Campbell, the error is subject to Chapman harmless-error review. The government must show that every rational juror would inevitably find three separate occasions.
Apply Wooden’s factors to the record:
- Durham – 3+ months gap, 15-mile separation, unrelated victims; other factors unneeded. Result: The occasions were “unquestionably different.”
- Barnes – 10–25-day gap, same chain, identical modus operandi, same charging document, concurrent sentences. A reasonable juror could entertain doubt. Result: Error not harmless.

3. Impact on Future Litigation

The decision crystallizes a two-tier harmless-error framework for ACCA cases in the Sixth Circuit:

Tier 1 – Decisive separation. When the record shows large temporal gaps, substantial geographic distance, and dissimilar victims, the appellate court may deem the error harmless without further fact-finding.
Tier 2 – Clustered or patterned crimes. Where crimes share location, victim, modus operandi, or are close in time, harmless error is unlikely; the question must go to a jury.

Practitioners should therefore marshal precise evidence of distance, arrest chronology, charging instruments, and sentencing history to meet or defeat the government’s burden.

Beyond the Sixth Circuit, sister circuits wrestling with post-Erlinger appeals may adopt similar bifurcated analyses, thereby harmonizing the scope of harmless error under ACCA nationwide.

Complex Concepts Simplified

ACCA (Armed Career Criminal Act): Federal statute imposing a 15-year minimum sentence on felons-in-possession who have three prior “violent felony or serious drug offense” convictions committed on “occasions different from one another.”
Different Occasions Test: Are the prior crimes part of one episode or distinct episodes? Under Wooden, jurors weigh: when, where, how, and why the crimes happened.
Harmless Error (Chapman Standard): A conviction or sentence may stand despite constitutional error if the appellate court is convinced beyond a reasonable doubt that the error did not affect the outcome.
Erlinger Rule: The jury—not the judge—must decide the “different occasions” question, absent the defendant’s admission.

Conclusion

United States v. Barnes/Durham stakes out important terrain in the post-Erlinger landscape. The Sixth Circuit reaffirmed that harmless-error review remains available, but only after a stringent inquiry calibrated to Wooden’s multi-factor test. Going forward, defendants whose priors are clustered in time, space, or modus operandi are likely to secure jury re-sentencing, while those with widely spaced, factually distinct priors may see affirmed sentences notwithstanding pre-Erlinger judicial fact-finding.

The decision thus balances fidelity to the jury trial right with practical finality, offering prosecutors and defense counsel a clearer roadmap: detail matters. Accurate documentation of dates, distances, arrest history, and offense characteristics will decide whether an ACCA enhancement rises or falls.

Ultimately, the case exemplifies the judiciary’s ongoing task of reconciling Sixth Amendment doctrine with real-world sentencing practice—ensuring that mandatory minimums rest on verdicts “beyond a reasonable doubt” while preventing endless retrials where the facts leave no rational room for disagreement.